United States v. Trump

How the president ends up at the Supreme Court—and how he might fare

June 6, 2018

President Donald Trump began his week with a statement that, while amounting to fewer than 280 characters, conveyed an astonishing threat to the American rule of law. “As has been stated by numerous legal scholars,” he tweeted on Monday morning, “I have the absolute right to PARDON myself.” In short, he was declaring that he could commit federal crimes and effectively get away with it.

Whether a president is allowed to pardon himself is an open legal question. In the final days of the Watergate crisis, the Justice Department’s Office of Legal Counsel concluded in a memo, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” But OLC opinions, as influential as they may be, are not conclusive judicial rulings. The Supreme Court has never ruled on the matter because none of Trump’s predecessors attempted so brazen a move.

While some observers have predicted that a self-pardon would be reviewed by the court, the path to the justices’ doorstep is more complicated than it looks. To trigger a legal battle, federal prosecutors would likely need to charge Trump with the crimes for which he pardoned himself, then argue before the courts that the pardon was invalid all along. But since Justice Department guidelines have ruled out prosecuting a sitting president, that face-off likely wouldn’t occur until after Trump leaves office in 2021 at the earliest, if it happens at all.

A more likely pathway to the Supreme Court, for now, is through the tug-of-war over whether Trump will submit to an interview with special counsel Robert Mueller. Trump’s lawyers have indicated they’re still working with Mueller to come to an arrangement, but if those talks fail, the special counsel may well subpoena Trump to appear before a grand jury—in which case a Supreme Court showdown would be likely.

Mueller reportedly first signaled that he wanted to interview the president last December, in one of his regular meetings with Trump’s lawyers. Trump has publicly said he’d be willing to do it. But his lawyers and other allies have bristled at the idea of placing the president in Mueller’s direct path. Rudy Giuliani, Trump’s media-friendly lawyer, recently described a potential interview as a “perjury trap.” Though he apparently meant it as a critique of the special counsel, it actually says more about his client’s habit of telling lies. After all, it’s only a perjury trap if you commit perjury.

Since that December meeting, the special counsel’s office and the White House have reportedly negotiated how, when, and if such an encounter would take place. The New York Timespublished a memo last weekend sent to Mueller’s team in January by Trump lawyers John Dowd (who has since resigned) and Jay Sekulow (who hasn’t). It offered a rare glimpse into the Trump legal team’s substantive legal arguments beyond what they put forth in media appearances.

Like the self-pardon tweet, the memo laid out a startlingly broad vision of presidential power: that Trump cannot be compelled to testify by Robert Mueller, that his otherwise legitimate exercises of executive power cannot be considered obstruction of justice, and that his constitutional powers allow him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.” The overall message, especially when combined with Trump’s Monday tweet, is blunt: The president is above the law.

Mueller’s response isn’t known, but it’s doubtful he agreed with their conclusions. So what happens now? The simplest outcome of this negotiation would be for the president to do what he says he does best: strike a deal. Federal prosecutors have interviewed sitting presidents in less formal circumstances than a grand jury appearance, most recently when President George W. Bush gave his version of events in the Valerie Plame leak investigation. (It helped that Bush himself was not suspected of wrongdoing in that case.) Trump could use the threat of a Supreme Court clash to push Mueller in that direction.

There’s precedent for such a move. Bill Clinton’s lawyers initially refused multiple requests from independent counsel Ken Starr for an interview during the Monica Lewinsky investigation. That led Starr to issue a historic subpoena to Clinton in July 1998, ordering him to testify before a federal grand jury. Starr and Clinton’s lawyers eventually negotiated a compromise where Clinton would receive some procedural concessions while voluntarily appearing before the grand jury. In exchange, Starr withdrew the subpoena.

Because the two sides reached a deal to avoid a lengthy court battle, the underlying legal dispute remains unresolved. Trump’s team could attempt similar hardball tactics with Mueller to extract concessions from the special counsel’s office and then ultimately agree to an interview of some kind with him. But the Clinton-Starr clash could still give them pause: Starr ultimately concluded that Clinton lied three times during that grand jury appearance, setting the stage for Clinton’s impeachment later that year.

Trump could also respond to a subpoena by ordering Deputy Attorney General Rod Rosenstein to fire Mueller. Legal experts generally think it’s unlikely that Rosenstein would agree to carry out that order. Rosenstein told Congress in December that he can only fire the special counsel for “good cause,” meaning wrongdoing or a conflict of interest on Mueller’s part. That means Trump would be forced to demand Rosenstein’s resignation or fire him. Ousting the deputy attorney general would likely trigger a cascade of resignations throughout the Justice Department’s upper ranks as the president searches for an official who’s willing to dismiss Mueller.

President Richard Nixon incurred a tremendous political toll when he conducted a similar purge during the Watergate crisis in 1974, which became known as the Saturday Night Massacre. Trump may fear similar blowback if he attempts to shut down the investigation now. If Mueller stands his ground and Trump refuses to comply, the battle would then move to the courts.

But there are key differences between Nixon’s situation and Trump’s. The special prosecutor in the Watergate investigation wasn’t seeking Nixon’s personal testimony, but tapes of his conversations in the White House. Nixon challenged the prosecutor’s subpoena on the grounds that it would violate executive privilege, which allows presidents to keep certain documents secret from Congress and the judiciary.

In theory, the privilege is supposed to allow the president to receive candid advice from his Cabinet and advisers without interference from the other branches and to protect national security secrets. But the Supreme Court determined, in United States v. Nixon, that executive privilege doesn’t apply if documents are subpoenaed for a criminal trial. The tapes thus became public, and their contents made clear that Nixon had actually invoked the privilege to hide his participation in a criminal coverup. (Nixon eventually appeared before the Watergate grand jury in 1975, after he had resigned and been pardoned by President Gerald Ford.)

The Dowd-Sekulow memo also raises questions of executive privilege, but approaches them differently than Nixon did. Trump’s lawyers invoked what’s known as the Espy ruling, which refers to a 1997 decision by the D.C. Circuit Court of Appeals. Federal investigators had sought to obtain a report compiled by the White House counsel’s office for a corruption investigation into then-Secretary of Agriculture Mike Espy. The D.C. Circuit rejected the request, ruling that investigators had “not yet made a sufficient demonstration of its inability to obtain this information from alternative sources or an explanation of why it particularly needs to know what evidence is in the White House files.”

To that end, Trump’s lawyers argued in the memo that they had given Mueller’s team access to dozens of White House witnesses and tens of thousands of documents. “In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President,” they wrote.

Would that argument persuade the Supreme Court? It’s worth noting that the Espy ruling wasn’t reviewed by the justices at the time. (A jury later acquitted Espy of corruption charges; he’s currently running for a Senate seat in Mississippi.) Even if the justices accepted the Espy ruling, it’s unclear whether it would apply in Trump’s case. The D.C. Circuit reached its decision in part because White House officials weren’t under investigation, while Trump clearly is. Moreover, the case dealt with documents, not personal testimony. Only Trump can testify about his own state of mind.

The Supreme Court could hand Mueller a defeat and set a new precedent on how executive privilege applies when the president is under direct scrutiny in a criminal investigation. If Trump loses, however, another set of calculations comes into play. The justices who ruled against Nixon crafted a unanimous ruling because they feared he would ignore a divided court’s decision: the Nixon White House had stated that he would only obey a “definitive ruling” from the court.

As I noted in April, the risk of such defiance is even higher now: Trump routinely attacks the judiciary when it rules against him, shows little regard for the rule of law or processes that constrain him, and nonetheless enjoys unwavering political protection from most of his Republican colleagues in Congress. Any decision that compels a president to submit to a federal grand jury’s authority would be a landmark ruling by the Supreme Court. Trump’s authoritarian tendencies raise the stakes even higher.